Road to exemption

Earlier this week, two Liberal opposition members said the province may be breaking its own law by releasing orders in council.

If you’ve been following along, you’ll know orders in council are binding orders issued by cabinet — otherwise known as Executive Council — that have the same effect as laws. They can order the hiring or firing of staff, the implementation of regulations, etc. As with laws, the lieutenant-governor has to rubber stamp them.

A few weeks ago, The Telegram ran into roadblocks trying to establish whether orders in council were readily available to the public. At the time, no one really knew. The Telegram has received a few on request, but some were heavily redacted.

Earlier this week, MHAs Jim Bennett and Andrew Parsons, both lawyers, examined Section 18 (v) of the province’s Access to Information and Personal Privacy Act which states cabinet documents include “an agenda, minute or other record of cabinet recording deliberations or decisions of the cabinet.”

In their opinion, that clause would include orders in council, since they represent records of cabinet decisions.

Now, exempting cabinet documents from public access is not just an option under the act. It is mandatory. It is mandatory in order to prevent the government from withholding or releasing information on a whim. There can be no exceptions.

So, if orders in council are covered by that clause, argue the Liberal MHAs, then the government broke the law in releasing them, redactions or not.

A spokeswoman for Public Engagement Minister Keith Hutchings told The Telegram that orders in council are not exempt under Section 18 of the act. “An order in council is a decision of the lieutenant-governor in council acting on the advice of cabinet,” she said. That places them outside the realm of cabinet decisions.

That might seem like splitting hairs, but there’s an important fact that backs it up. Other Canadian provinces — all of which make orders in council available publicly — use almost the exact same wording in their exemption clauses.

Here’s Ontario’s: “an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees.”

And Saskatchewan’s: “agendas or minutes of the Executive Council or any of its committees, or records that record deliberations or decisions of the Executive Council or any of its committees.”

So, score one for the government.

Not so fast, though. While the release of orders in council seems to have national precedent, this province is still behind in the game. It has yet to implement a clear and formal means of access.

And it still applies other clauses in the act to black out portions of an order when it is released. There are no “notwithstanding” clauses to prevent the government from cherry-picking among numerous exemption clauses.

Bennett has at least one thing right: “There’s not much good faith left with how this government has dealt with secrecy and access to information.”